This matter comes before the court on a complaint by the plaintiffs, who are Board-certified oral surgeons.*fn1 They are engaged in private practice in Jersey City and are members of the staff of the Jersey City Medical Center (Medical Center).

The relief sought by plaintiffs is (1) reinstatement to the Medical Center emergency room rotation schedule (rotation schedule); (2) expungement of a censure by the executive committee of the medical and dental staff of the Medical Center and a remand to the joint conference committee and the credential committee for a hearing; (3) establishment of adequate facilities at the Medical Center for the treatment of oral surgical patients, and (4) access to the dental facilities of the New Jersey Medical College of Medicine and Dentistry.

On motion with consent the complaint was dismissed as against defendant Huerta C. Neals.

A brief statement of background facts is necessary for a full understanding and appreciation of the issues in this case. Plaintiffs are former faculty members of the College of Medicine and Dentistry of New Jersey -- New Jersey Dental School (Dental School). Defendant Dental School is an institution of higher education funded by the State of New Jersey and dedicated to the education of surgeons and dentists of graduate and undergraduate levels. Defendant Marlin F. Troiano (Dr. Troiano) is Professor and Chairman of the Department of Oral Surgery, Anesthesiology and Hospital-Dental Services and Assistant Dean for Hospital Affairs as well as Director of the Department of Dentistry and the Medical Center. Defendant Medical Center is a publicly funded hospital devoted to the care of the sick. It has an affiliation agreement with the Dental School whereby the Medical Center serves as a satellite teaching division of the college. Pursuant to this affiliation contract the chairman of each hospital department is subject to approval by the Dental School and in all instances the head of the department must also be a member of the faculty of the college.

I

On July 20, 1973 plaintiffs were advised that their participation on the rotation schedule at the Medical Center was to be terminated since there existed disharmony, mistrust and lack of cooperation between them and Dr. Troiano and his staff. At the trial Dr. Troiano testified that it was also his intention to have more members of the Dental School faculty serve on the rotation schedule in order to have closer supervision over the oral surgery residents.*fn2

Plaintiffs seek reinstatement to the rotation schedule and contend that their exclusion from this service and from participation in the training of residents has adversely affected them professionally and has also adversely affected their treatment of their private patients because (a) it has limited their exposure to trauma cases; (b) it has denied them an opportunity for continuing professional education; (c) it has excluded them from an "academic atmosphere"; (d) they are not provided the same degree of assistance during surgery that attending oral surgeons on the rotation schedule are provided, and (e) they are denied an opportunity to perform an ethical obligation. Plaintiffs do not contend that there is any economic loss by reason of their nonparticipation in the rotation schedule, and there is no evidence that it is economically beneficial for an attending oral surgeon to participate in the rotation schedule.

Whether plaintiffs have an absolute right to membership on the rotation schedule presents a novel question of law in this State.

It is a well recognized and often repeated axiom that licensed physicians have no constitutional right to practice their profession in a hospital maintained by a state or political subdivision.*fn3 Hayman v. Galveston, 273 U.S. 414, 47 S. Ct. 363, 71 L. Ed. 714 (1927). Acknowledging this general legal proposition, our courts have frequently emphasized that

A hospital may prescribe reasonable rules concerning the qualifications of physicians allowed to practice therein. While the issuance of a license to practice medicine and surgery by the State Board of Examiners evidences the qualifications and the right of the holder thereof to practice within the state, it does not give him the right per se to practice in a municipal institution. [ Jacobs v. Martin, 20 N.J. Super. 531, 538 (Ch. Div. 1952)]

Committed to the principle that a physician does not have an absolute right to pursue his practice in a public hospital, courts generally have correlatively recognized that access to public hospital facilities may be indispensable if a physician is to sustain an ongoing private medical practice. In Greisman v. Newcomb Hospital, 40 N.J. 389, 401-402 (1963), our Supreme Court addressed itself to the question of a hospital's power to pass on staff membership applications and concluded that the policy considerations expressed in Falcone v. Middlesex Cty. Medical Soc., 34 N.J. 582 (1961), "appl[ied] with equal strength" to the issue of staff privileges. 40 N.J. at 401. Falcone was an action in lieu of mandamus to compel the Middlesex County Medical Society to admit Dr. Falcone to membership. Holding that the effort of the County Society to apply its unwritten requirement of four years' attendance at a medical college approved by the American Medical Association so as to exclude Dr. Falcone from membership was patently arbitrary and unreasonable and beyond the pale of the law, our Supreme Court observed:

We are here concerned with and therefore deal solely with an organization, membership in which may here, in the language of Trautwein,*fn4 be viewed as 'an economic necessity'; in dealing with such an organization, the court must be particularly alert to the need for truly protecting the public welfare and advancing the interests of justice by reasonably safeguarding the individual's opportunity for earning a livelihood while not impairing the proper standards and objectives of the organization. [34 N.J. at 592]

Therefore, absent a clear showing of economic impotency, judicial relief designed to compel admission to membership -- whether it be in a medical society, hospital or other association or organization -- will be withheld. This immutable conclusion is reaffirmed by the concluding language of Falcone :

Through its interrelationships, the County Medical Society possesses, in fact, a virtual monopoly over the use of local hospital facilities. As a result it has power, by excluding Dr. Falcone from membership, to preclude him from successfully continuing in his practice of obstetrics and surgery and to restrict patients who wish to engage him as an obstetrician or surgeon in their freedom of choice of physicians. Public policy strongly dictates that this power should not be unbridled but should be viewed judicially as a fiduciary power to be exercised in reasonable and lawful manner for the advancement of the interests of the medical professions and the public generally * * *. [ Id. at 597]

Attuned to the purport of the aforequoted language, it is not unexpected that the court in Greisman was guided to the conclusion that Dr. Greisman's application for membership on the hospital's courtesy medical staff could not be arbitrarily rejected.

The Newcomb Hospital is the only hospital in the Vineland metropolitan area and it is publicly dedicated * * *. Doctors need hospital facilities and a physician practicing in the metropolitan Vineland area will understandably seek them at the Newcomb Hospital. Furthermore, every patient of his will want the Newcomb Hospital facilities to be readily available. It hardly suffices to say that the patient could enter the hospital under the care of a member of the existing staff, for his personal physician would have no opportunity of participating in his treatment; nor does it suffice to say that there are other hospitals outside the metropolitan Vineland area, for they may be too distant or unsuitable to his needs and desires. All this indicates very pointedly that, while the managing officials have discretionary powers in the selection of the medical staff, those powers are deeply imbedded in public aspects, and are rightly viewed, for policy reasons entirely comparable to those expressed in Falcone, as fiduciary powers to be exercised reasonably and for the public good. [40 N.J. at 402]*fn5

Surveying nationally the wealth of cases which consider the issue of exclusion of a physician from the use of hospital

facilities serves only to reveal a dearth of decisions dealing with the unique demand presented by plaintiffs in the instant case. Case law acknowledges that a physician or surgeon who is not permitted to practice his profession in a hospital is, as a practical matter, denied the right to fully practice his profession since, in this day of advanced medical knowledge and advanced diagnostic techniques, only a hospital has the facilities necessary for proper diagnosis or treatment. Wyatt v. Tahoe Forest Hospital Dist., 174 Cal. App. 2d 709, 345 P. 2d 93, 97 (D. Ct. App. 1959). However, no case has been found advancing the proposition asserted by plaintiffs that the privilege of an attending staff member to use hospital facilities for treatment of his private patients gives him an enforceable right to treat public emergency patients or to be involved in the hospital's training of resident dentists. To the contrary, there is authority which properly rejects this suggestion.

In Alpert v. Board of Governors of City Hospital, 286 App. Div. 542, 145 N.Y.S. 2d 534 (App. Div. 1955), the court was called upon to consider the exclusion of Harry L. Alpert, a duly licensed physician, from using public hospital facilities and from participating as a member of the medical staff in the care and treatment of nonprivate patients. In its delineation of the facts the court noted that "if his [Dr. Alpert's] patients require hospitalization, they must retain another physician. Since the nearest other hospitals are considerably distant, petitioner alleges that his exclusion from the city hospital at Fulton will effectively destroy his practice and deprive him of the right to practice medicine in that area." Id. at 536.

Acknowledging that Dr. Alpert's livelihood was, in fact, jeopardized by his exclusion from access to the hospital facility, the New York appellate tribunal, in a tone reminiscent of Falcone and Greisman, was moved to conclude:

On this record it appears that he is a capable and qualified surgeon who has developed a large practice representing a substantial

investment. * * * We conclude that a qualified physician admitted to practice in a public hospital acquires a species of tenure and cannot be capriciously excluded and thereby injured financially and professionally, all without notice and an opportunity to be heard.

It follows that petitioner is entitled to use the facilities of the hospital in the treatment of his own patients. [at 538-539]

As to the privilege of treating nonprivate patients, the court sternly stated in words clearly applicable to the instant case:

The petition also prays for an order that he be reinstated upon the active medical staff. The record contains no showing which would entitle him to such relief. The active staff consists of "those physicians who have been selected to regularly attend patients in the hospital and to whom all such patients shall be assigned." Respondent should have complete freedom of choice in such matters. Petitioner, although entitled to treat his own patients in the hospital, has no right to represent the hospital or to treat patients who have not engaged his services. Appointments to the medical staff are made by the board of governors for a term of one year. Respondent's failure to reappoint him to the staff gives rise to no legal remedy, nor is such reappointment necessary to assure him of the right to use the facilities of the hospital and to treat his own patients therein. That right is subject to no one-year limitation and continues so long as petitioner obeys all reasonable rules and regulations of the board of governors and gives no cause for his removal. This result at the same time controls arbitrary conduct by respondent in matters of public concern, yet gives a free hand to the board of governors with regard to the internal management and organization of the hospital. [at 539]

It is important to note that not only did the absence of economic deprivation influence and shape the court's decision in Alpert as it applied to readmission to the active medical staff but also the court evidenced a determined commitment to shield the managing discretion of hospital officials from administrative intrusion.

physicians, specializing in cardiology, from using certain hospital facilities and equipment for cardiac catheterizations and related procedures, and permitted only the full-time director of the hospital laboratory to perform such procedures. Finding that enforcement of this regulation did not violate due process, equal protection or the right of a patient to be treated by a physician of his choice, the Pennsylvania Supreme Court reasoned:

Were Montefiore to open its Laboratory doors to appellant, it would follow that the same privilege would have to be accorded the other qualified staff cardiologists so requesting, thereby rendering even more difficult the attainment of the Hospital's goals.

The procedure for oral surgery patients seen at the Medical Center's emergency room is as follows.

If a patient requiring oral surgical attention is admitted to the emergency room and requests attention by a specific attending oral surgeon, then that oral surgeon is called whether or not he is on the roster of attending oral surgeons participating in the rotation schedule; the patient is then regarded as a private patient of the requested oral surgeon and not as a hospital patient.

At the time of admission, if the patient does not request his or her personal oral surgeon, the patient is first seen by the resident oral surgeon on duty at that time. If the resident on duty needs assistance in making a diagnosis, or in providing ...

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